September 18, 1973
Page 30071
By Mr. ERVIN (for himself, Mr.MUSKIE, Mr. METCALF, Mr. CHILES, Mr. MATHIAS, Mr. FULBRIGHT, and Mr. MANSFIELD)
S. 2432. A bill to establish a procedure assuring Congress the full and prompt production of information requested from Federal officers and employees. Referred to the Committee on Government Operations.
CONGRESSIONAL RIGHT TO INFORMATION ACT
Mr. ERVIN. Mr. President, on behalf of Senators MUSKIE, METCALF, CHILES, MATHIAS, FULBRIGHT, MANSFIELD and myself, I introduce for appropriate reference the Congressional Right to Information Act.
This bill already has been ordered to be reported favorably by the Subcommittee on Intergovernmental Relations of the Committee on Government Operations, of which Senator MUSKIE is chairman.
It contains a combination of approaches to the problem of congressional access to information that have been put forth in other bills by Senators MATHIAS, FULBRIGHT, MUSKIE and myself, and I am indebted to these other Senators for their significant contributions.
In addition, former Senator John Sherman Cooper worked on legislation similar to sections of this bill during his distinguished career in the Senate.
I believe this measure will afford a reasonable and workable solution to a problem that has plagued the Congress for years: access to information which is in the possession of the executive branch and the independent regulatory agencies.
The bill would amend the Legislative Reorganization Act of 1970 to establish a procedure assuring Congress the full and prompt production of information requested from Federal officers and employees.
Every Federal agency will be instructed to keep each joint committee and standing committee fully and currently informed with respect to all matters relating to that agency which are within the jurisdiction of such committee.
A joint or standing committee, or two-fifths of the members thereof, will be able to request any information relating to any matter within the committee's jurisdiction, and it will be the duty of a Federal agency to provide that information.
The bill provides that when an officer or employee of the United States is summoned to testify or to produce information, he shall do so unless instructed otherwise by the President in writing.
The joint or standing committee requesting the information or testimony will be able to determine whether the Presidential instruction is without foundation in law, and if it so determines, the officer or employee may be ordered by the committee to appear and produce the information requested of him.
If the committee then determines that the officer or employee has failed to comply with that order, it shall introduce a resolution in its respective House citing the failure to comply. Such a resolution would be privileged business for immediate consideration.
Adoption of the resolution would bring about immediate suspension of the salary of the officer or employee and his supervisors until he complies with the order to produce the information.
In drafting this bill, members of the Subcommittee on Intergovernmental Relations went to great pains to protect the rights of the individual officer or employee and to insure that the innocent are not punished along with the guilty. Protection of the individual and his family was of special concern to Senator ROTH, and he suggested that the bill contain a provision which would insure judicial review of each salary suspension.
Accordingly, the aggrieved officer or employee would be authorized to bring a civil action in the U.S. District Court for the District of Columbia requesting such relief as may be appropriate on the grounds that the determination made by the joint or standing committee was invalid because:
First, there was no failure to comply with the provisions of the bill or a committee order to produce information, or second, that failure to comply with the provisions of the bill or the committee order was proper and justified.
Each House of Congress and the joint and standing committees would be instructed to take appropriate measures to insure the confidentiality of any information made available.
Nothing in the bill would be construed to require the production of information if such production is prohibited by an Act of Congress.
This bill represents a very sensible, moderate solution to the problem of congressional access to information, and I urge my colleagues to support it.
Mr. President, I ask unanimous consent that the text of the Congressional Right to Information Act be printed in the RECORD.
There being no objection, the text of the bill was ordered to be printed at an appropriate point in the RECORD. [See exhibit 1]
Mr. President, I also ask unanimous consent that a statement prepared by Senator MUSKIE, a cosponsor of the bill, who has done magnificent work in this area of concern, be printed in the RECORD immediately following the text of the bill.
There being no objection, the statement was ordered to be printed immediately following the text of the bill:
EXHIBIT 1
S. 2432
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Congressional Right to Information Act".
SEC. 2.(a) Title III of the Legislative Reorganization Act of 1970 is amended by adding at the end thereof the following new part:
"PART 4 – KEEPING THE CONGRESS INFORMED
"INFORMING CONGRESSIONAL COMMITTEES
"SEC. 341. (a) Every Federal agency shall keep each joint committee of the Congress or standing committee of either House of Congress fully and currently informed with respect to all matters relating to that agency which are within the jurisdiction of such joint committee or standing committee.
"(b) A Federal agency, on request of a joint committee of the Congress or of a standing committee of either House of Congress, or two-fifths of its Members, shall submit any information requested of it relating to any matter within the jurisdiction of the joint committee or standing committee.
"PRODUCTION OF INFORMATION
"SEC. 342. (a) When an officer or employee of the United States is summoned to testify or to produce information, records, documents, or other material before either House of Congress, or a joint committee of Congress, or a standing committee of either House, that officer or employee shall appear at the time and place specified and shall answer all questions propounded to him, or produce all information, including records, documents, and other material sought, unless, in the case of an officer or employee of a Federal agency in the Executive Branch, either between the date of the summons and the date of the appearance or, in the case of any such information which was first requested at an appearance, within five days after that appearance, the President formally and expressly instructs the officer or employee in writing to withhold the information requested, including answers to specific questions, or specific records, documents, or other material, in which event such Presidential instruction shall set forth the grounds on which it is based.
"(b) Each written Presidential instruction pursuant to subsection (a) shall be transmitted to the House of Congress, joint committee, or standing committee requesting the information, proposing the questions or seeking the records, documents, or other material, which shall determine whether the Presidential instruction is without foundation in law.
"(c) If it is determined that the Presidential instruction is without foundation in law, the officer or employee shall be ordered to appear at a time specified before the House of Congress, joint committee, or standing committee and to provide there the information requested by answering the question or questions propounded and producing any information, including records, documents, or other material requested.
"SUSPENSION OF SALARY
"SEC. 343. (a) If a House of Congress, a joint committee, or a standing committee determines that an officer or employee of the United States has failed to comply with the provisions of section 342(a) within 30 days, after being summoned to testify or to produce information, records, documents, or other material, or, in the case of an officer or employee who has received a Presidential instruction described in section 342(a), has failed to comply with an order issued pursuant to section 342(c) within 30 days after the order is received by that officer or employee–
"(1) in the case of determination by a House of Congress, the majority leader of that House shall introduce a resolution citing such failure to comply;
"(2) in the case of determination by a joint committee, such joint committee shall report a concurrent resolution to both Houses of Congress citing such failure to comply; and
"(3) in the case of determination by a standing committee, such committee shall report a resolution to its House citing such failure to comply.
"(b) (1) A resolution or concurrent resolution introduced or reported pursuant to subsection (a) shall not be referred to a committee and shall be privileged business for immediate consideration. It shall at any time be in order (even though a previous motion to the same effect has been disagreed to) to move to proceed to the consideration of the resolution or concurrent resolution. Such motion shall be highly privileged and not debatable. An amendment to the motion shall not be in order, and it shall not be in order to move to reconsider the vote by which the motion is agreed to or disagreed to.
"(2) If the motion to proceed to the consideration of the resolution or concurrent resolution is agreed to, debate thereon shall be limited to two hours, which shall be divided equally between those favoring and those opposing the resolution or concurrent resolution. A motion further to limit debate shall not be debatable. No amendment to, or motion to recommit, the resolution or concurrent resolution shall be in order, and it shall not be in order to move or reconsider the vote by which the resolution or concurrent resolution is agreed to or disagreed to.
"(3) Motions to postpone, made with respect to the consideration of the resolution or concurrent resolution, and motions to proceed to the consideration of other business, shall be decided without debate.
"(4) All appeals from the decisions of the Chair relating to the application of the rules of the Senate or the House of Representatives, as the case may be, to the procedure relating to the resolution or concurrent resolution shall be decided without debate.
"(5) In the case of concurrent resolution, if, prior to the adoption by one House of a concurrent resolution of that House, that House receives from the other House a concurrent resolution of such other House, then–
"(A) the procedure with respect to the concurrent resolution of the first House shall be the same as if no concurrent resolution from the other House had been received; but
"(B) on any vote on final adoption of the concurrent resolution of the first House the concurrent resolution from the other House shall be automatically substituted.
"(c) If a House of Congress adopts a resolution, or if the two Houses adopt a concurrent resolution, citing an officer or employee of the United States for failure to comply with the provisions of section 342(a)or with an order issued under section 342(3), no payment shall be made from the Treasury of the United States to such officer or employee, or to any other officer or employee of the Federal agency employing such officer or employee who has supervision or control of the official conduct of such officer or employee, for services rendered after the tenth day after the date on which such resolution or concurrent resolution is adopted, unless or until such officer or employee complies with the provisions of such section or with such order, as the case may be.
"(d) The provisions of subsections (a)and (b) of this section are enacted by the Congress
"(1) as an exercise of the rulemaking power of the Senate and the House of Representatives, respectively, and as such they shall be considered as part of the rules of each House, respectively; and such rules shall supersede other rules only to the extent that they are inconsistent therewith; and
"(2) with full recognition of the constitutional right of either House to change such rules (so far as relating to the procedure in such House) at any time, in the same manner, and to the same extent as in the case of any other rule of such House.
"JUDICIAL REVIEW
"SEC. 344. (a) Any officer or employee of the United States aggrieved by the application of section 343(c) may bring an action in the United States District Court for the District of Columbia requesting such relief, including a permanent or temporary injunction, restraining order, or other order, as may be appropriate, on the grounds that the determination made by the House of Congress, the joint committee, or the standing committee under section 343(a) was invalid because
"(1) there was no failure to comply with the provisions of section 342(a), or with an order issued under section 342(c), on the basis of which a resolution or concurrent resolution was adopted under section 343 resulting in the application of section 343(c),or
"(2) failure to comply with such provisions or such order was proper and justified.
"(b) An action under subsection (a) shall be brought against the presiding officer of the House of Congress which adopted the resolution pursuant to section 343 which resulted in the application of section 343(c), or, in the case of a concurrent resolution, against the presiding officers of both Houses, and against such other parties as may be appropriate.
"(c) The United States District Court for the District of Columbia shall have jurisdiction of actions brought under this section. Appeal of the judgment and orders of the court in such actions shall be had in the same manner as actions brought against the United States under section 1346 of title 28, United States Code.
"(d) The courts shall give precedence over all other civil actions to actions brought under this section.
"PROTECTION OF INFORMATION
"SEC. 345. Each House of Congress and the standing committees thereof and the joint committees of Congress shall take appropriate measures to insure the confidentiality of any information made available under this part which, in the judgment of the Federal agency providing it and the House of Congress or joint or standing committee receiving it, requires protection against disclosure which would endanger personal privacy or the conduct of the national defense, foreign policy, or law enforcement activities.
"DEFINITION
"SEC. 346. For purposes of this part, 'Federal agency' has the same meaning given that term under section 207 of this Act, and includes the Executive Office of the President.
"SAVINGS PROVISION
"SEC. 347. Nothing in this part shall be construed to require to the furnishing or production of any information, records, documents, or other material to either House of Congress, a joint committee of Congress, or a standing committee of either House if such furnishing or production is prohibited by an Act of Congress."
(b) Title III of the table of contents of the Legislative Reorganization Act of 1970 is amended by adding at the end thereof the following:
"PART 4-KEEPING THE CONGRESS INFORMED
"Sec. 341. Informing Congressional committees.
"Sec. 342. Production of information.
"Sec. 343. Suspension of Salary.
"Sec. 344. Judicial Review.
"Sec. 345. Protection of Information.
"Sec. 346. Definition.
"Sec. 347. Savings Provision."
STATEMENT BY SENATOR MUSKIE
Mr. MUSKIE. Mr. President, the legislation we introduce today marks a decisive step toward resolving a very practical problem: the access of Congress and its committees to the information which is essential to our job as legislators. Enactment of this Congressional Right to Information Act will restore in fact the authority Congress has always had in theory: to compel production of information from the Executive Branch, to punish arbitrary withholding of such information and to provide a mechanism for judicial arbitration of disputes over information sought by the Congress and withheld by executive officials.
The bill accepts the standard laid down by James Madison in the Federalist, No. 49, for those areas of Constitutional practice where the rights of Congress come into conflict with the asserted prerogatives of the Executive Branch:
"Neither the executive nor the legislative can pretend to an exclusive or superior right of settling the boundaries between their respective powers."
But by reconfirming that guiding principle, we also reconfirm in this legislation the inherent power of Congress to instruct itself and the public fully on the conduct of the public business, even when the President claims unlimited discretion to control the flow of information to us and to the people.
In recent years – particularly since the end of the Second World War – a vigorous executive has largely succeeded in tailoring the facts it makes available to Congress to fit its objectives and to restrict our role in shaping policy. With few exceptions, Congress has acquiesced in this erosion of its right to knowledge and, by such acquiescence, has contributed to upsetting the balance of power between the branches.
Our bill goes far to restore that balance. In the routine area of legislative oversight, it obliges Federal agencies to provide Congressional committees with appropriate jurisdictional interest, thorough ongoing reports of agency activities, and to fulfill special requests for information made either by the full committee or a substantial minority of its members. This mandate is based on specific statutory precedents.
The Act of 1789, for instance, required the Secretary of the Treasury to report to Congress regularly as well as at its request on "all matters ... which shall appertain to his office." In 1928 we enacted a law which establishes beyond question the right of the Committees on Government Operations of both Houses of Congress to obtain information from executive officials on request. And in 1946, in establishing the Atomic Energy Commission, we required the Commission, the Defense Department and other Federal agencies to keep the Joint Committee on Atomic Energy "fully and currently informed" of activities and developments in the field of atomic energy.
Our legislation extends to all the standing committees of Congress – those with substantive and established jurisdiction over specific agencies and programs – the explicit authority they already exercise. Section 341 of our bill, drawing on the thoughtful proposals of the distinguished former Senator from Kentucky (Mr. COOPER) in the last Congress and those of our co-sponsor, the able Senator from Maryland (Mr. MATHIAS), establish in law the practice which now enables our committees to function effectively.
In the area which has come to be known – and hotly debated – as "executive privilege," our legislation answers the fundamental question of who is to decide the propriety of a claim of confidentiality. In April of this year, the then Attorney General of the United States shocked me and many other Members of Congress when he testified, "Your power to get what the President knows is in the President's hands."
That assertion of naked power is unacceptable in a system of checks and balances. Our legislation provides that a President may instruct an executive official not to testify or provide specific information requested by Congress. But it makes it clear that no such instruction is automatically final. In each case where confidentiality or privilege is claimed, the House of Congress or committee to which the claim is made is instructed to weigh its legal validity.
Arbitrary and unjustified claims of secrecy acquire no added validity from the circumstance of their invocation by the Chief Executive. But when an official under the President's control wishes to withhold information formally requested by the Congress, he must present a Presidential explanation of his stand. We cannot legislate effectively if we permit subordinate officials, on their own, to deny us information on the grounds, so often cited in recent years, that supplying it would be "inappropriate" or "inconvenient" or "historically unprecedented."
To enforce our authority, moreover, we must have what this bill provides: a precise sanction against those officials who, in the view of a committee and its House of Congress, have improperly withheld information. Suspending payment of salaries to those who would defy Congress creates a punishment that fits the crime. It also provides a tangible sanction whose imposition can be weighed in the courts and thus gives us, in each instance, a determination by the Judiciary of the conflict between Executive and Legislature.
Our bill does not reduce the power of any of the other weapons in the Congress' arsenal: the power to withhold confirmation of a Presidential appointee or the power to withhold appropriations sought or the power to cite an official for contempt. But it does give us another, less obstructive procedure for enforcing our basic authority to obtain information from the Executive Branch.
The premises of this legislation have been exhaustively explored in five days of hearings before Senator Ervin's Subcommittee on Separation of Powers in 1971, in three days of hearings before the Foreign Relations Committee in 1972, and in nine days of hearings in 1973 conducted jointly and separately by the Subcommittee on Intergovernmental Relations of the Committee on Government Operations, which I have the honor of chairing, and the Subcommittee on Separation of Powers and on Administrative Practice of the Committee on the Judiciary. The legislation has now been ordered favorably reported by the Subcommittee on Intergovernmental
Relations, and I urge on my colleagues its prompt consideration and speedy approval.